Silberman’s Concurrence Offers FTCA Alternative Remedy Against Extending Bivens
This case law update was written by Michael J. Sgarlat, an attorney at the law firm of Shaw Bransford & Roth, where he has practiced federal personnel and employment law since 2015. Mr. Sgarlat works with federal employees to respond to proposed disciplinary and adverse actions, and has experience litigating cases before the U.S. Merit Systems Protection Board.
In 2016, Attorney General Jefferson Sessions introduced the zero-tolerance policy for non-United States citizens entering the country without prior authorization to immediately be prosecuted under 8 U.S.C. § 1325(a). This practice prompted the separation of hundreds of migrant children from their parents. Numerous lawsuits followed, including K.O. v. Sessions.
Here, the Appellants brought suit in the District Court for the District of Columbia. They alleged several constitutional violations and sought damages against federal officials from various agencies in their individual capacities under Bivens. They claimed they were each separated from their parents after their parents were taken into custody for illegal entry, not reunited with their parents, and suffered physical abuse from federal agents.
In Bivens, the Supreme Court recognized an implied cause of action for damages for persons injured by federal officials who violated the Fourth Amendment’s prohibition against unreasonable search and seizure. Twice more after Bivens, the Supreme Court recognized additional implied causes of action for damages against federal officials. The District Court explained that Bivens was not applicable here, and that under the two-step process developed by the Supreme Court, the Appellants’ claims arose in a new context and special factors counseled against extending Bivens.
In an unpublished decision, the U.S. Court of Appeals for the District of Columbia determined that the Appellants’ claims presented a new context and that special factors counseled against extending Bivens. Among the special factors counseling against extending Bivens was that there were alternative remedies available. Specifically, the majority stated: “The Appellants could have filed an action seeking injunctive relief to end the practice of family separation, an Administrative Procedure Act (APA) petition seeking review of the policies of various executive agencies that led to the separation of families at the border, or Appellants could have plausibly sought habeas relief.”
Senior Circuit Judge Laurence Silberman issued a separate opinion concurring with the majority’s holding. Unlike the majority’s opinion, Judge Silberman’s opinion was published. He argued for another path for the D.C. Circuit to reject this and future Bivens claims. He stated that “I would include as a reason to deny a Bivens action that the plaintiffs in this case had an alternative remedy for damages under the Federal Tort Claims Act (‘FTCA’). Indeed, they are pursuing such an action which makes their appeal for a Bivens action seem wholly superfluous.”
As the Appellants in this case noted, the Supreme Court’s 1980 decision in Carlson v. Green held that Bivens actions were not supplanted by a tort action authorized by the FTCA. However, Judge Silberman stated that “I don’t think that aspect of Carlson is any longer good law,” and that Carlson is “limited to its facts.” He expressed that the majority “ignores” this point.
Judge Silberman described that Bivens remedies are a “disfavored” judicial activity, and the Supreme Court has made cleared that damages remedies can only be implied for cases that fit within the neat set of facts of the three cases the Court has previously recognized such a remedy. Essentially foreclosing the possibility that an implied damages remedy could be applied to federal officials, Judge Silberman stated, “Those cases are limited to virtually the same factual situations.” He went on to express that a court could imply a Bivens remedy in a new context if “no special factors” counsel hesitation, and that one of those special factors is whether Congress has authorized any remedy for a particular alleged injury.
He stated that this could include an injunctive remedy or even an Administrative Procedures Act claim. Judge Silberman stated that it is “obvious” that a coinciding damages remedy authorized by the FTCA is a fortiori a special factor precluding a Bivens remedy and that part of Carlson’s language should be ignored.
Judge Silberman stated that Bivens is an example of the Supreme Court “acting like a common law court rather than an Article III court.” In a footnote, he added that “Justices who have seen themselves as common law judges have come from both political parties.” He then directed the Clerk to publish his concurring statement (though the majority opinion was not published).
Read Judge Silberman’s concurring opinion in K.O. v. Sessions.
For over thirty years, Shaw Bransford & Roth P.C. has provided superior representation on a wide range of federal employment law issues, from representing federal employees nationwide in administrative investigations, disciplinary and performance actions, and Bivens lawsuits, to handling security clearance adjudications and employment discrimination cases.